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2013 DIGILAW 389 (PAT)

Baid Nath Mehtar v. State of Bihar

2013-03-19

HEMANT KUMAR SRIVASTAVA

body2013
JUDGMENT Hemant Kumar Srivastava, J. Heard learned counsel Sri Narendra Prasad Singh appearing for the appellant as amicus curiae as well as learned Additional Public Prosecutor for the State and perused the record. 2. This criminal appeal has been preferred against the judgment of conviction and sentence order dated 02.02.2001 passed by Additional Sessions Judge-IV. Muzaffarpur in Sessions Trial No. 382 of 1996 by which and whereunder he convicted the appellant for the offences punishable under Sections 395 and 397 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for a period of five years for the offence punishable under Section 395 of the Indian Penal Code and to undergo rigorous imprisonment for a period of three years for the offence punishable under Section 397 of the Indian Penal Code. However both the sentences were ordered to be run concurrently. 3. In brief the prosecution case is that on 02.08.1995 at 03:00 a.m. informant, Binda Malli (PW 4) gave his fardbeyan to officer in charge of Sahebganj Police Station at his door to this effect that in previous night, while he along with his family members was sleeping in front of his house in midnight, 8 to 10 dacoits came at his house and started assaulting him. The aforesaid dacoits entered into his house and assaulted his mother namely Jagpati Devi and also looted belongings of the house. The dacoits snatched ornaments from his sister namely, Manju Devi and also snatched cash from his father, namely Ramrit Malli. The dacoits snatched cash and wrist watch from his brother in law namely, Jhapas Malli and also assaulted him by means of lathi. The dacoits also snatched money and ornaments from one Tetri Devi. The dacoits were aged about between 25 and 30 years and they were speaking local language. The PW 4 claimed that he had identified the dacoits in the light of their torches as well as dhibri which was burning in his house PW 4 further stated that his mother, namely, Jagpati Devi had identified the appellant and one other person. 4. On the basis of aforesaid fardbeyan Sahebganj P.S. Case No. 79 of 1995 was registered and accordingly, formal first information report was drawn up against the appellant and one other person. 4. On the basis of aforesaid fardbeyan Sahebganj P.S. Case No. 79 of 1995 was registered and accordingly, formal first information report was drawn up against the appellant and one other person. After completion of investigation police submitted charge-sheet for the offences punishable under Sections 395 and 397 of the Indian Penal Code against the appellant. The cognizance of the offence was taken and the case of appellant was committed to the Court of Sessions in usual way. 5. The appellant was put on trial and accordingly he was charged for the offences punishable under Sections 395 and 397 of the Indian Penal Code to which he denied and claimed to be tried. 6. In course of trial prosecution examined altogether eight witnesses. The statement of appellant was recorded under Section 313 of the Cr PC in which he stated that he was falsely implicated by the informant as he had pounded the pigs of informant prior to the alleged occurrence. The appellant also produced one defence witness who proved receipt which is Annexure-A. 7. The learned trial Court having relied upon the testimonies of prosecution witnesses convicted and sentenced the appellant in the manner as stated above. 8. Learned counsel• appearing for the appellant as amicus curiae assailed the impugned judgment of conviction and sentence order submitting that appellant is co-villager of informant and according to statement of PW 8 the appellant was arrested by PW 8 from his house on the alleged date of occurrence and therefore the aforesaid circumstance negates the involvement of the appellant in the alleged crime because no prudent person would commit dacoity in his own village without covering his face and furthermore no person would take rest in his house just after committing the dacoity in his own village. He further submitted that the prosecution witnesses claimed to have identified the appellant in the light of dhibri which was burning in their house at the time of alleged crime but Investigating Officer did not find any dhibri nor seized the said dhibri and therefore non-seizure of the dhibri is fatal to the prosecution case. He further submitted that PW 4 stated in his fardbeyan that his mother had identified the appellant and one other dacoit in course of dacoity but in course of trial. He further submitted that PW 4 stated in his fardbeyan that his mother had identified the appellant and one other dacoit in course of dacoity but in course of trial. PW 4 and his other family members claimed that they had also identified the appellant at the time of alleged dacoity. He further submitted that the mother of PW 4 has been examined before the trial Court as PW 2 and she stated that only two persons committed dacoity in her house and similar statement has been made by PW 3. Manju who happens to be cousin sister of PW 4 whereas PW 4 and other witnesses stated that dacoits were 8 to 10 in number and, therefore, the aforesaid contradiction also creates doubt about the genuineness of the prosecution story. He further submitted that even if the prosecution succeeded to prove the factum of dacoity, the participation of the appellant in the aforesaid dacoity is doubtful because admittedly, the appellant is co-villager of PW 4 and Exhibit-A as well as deposition of defence witness reveal that prior to the alleged dacoity the pig of PW 4 was pounded by the appellant and. therefore. PW 4 and his other family members had grudge against the appellant. 9. On contrary learned Additional Public Prosecutor supported the impugned judgment of conviction and sentence order arguing that almost all the material prosecution witnesses supported the factum of dacoity as well as participation of the appellant in the alleged dacoity. He further submitted that according to prosecution case PW 5 sustained injury in the aforesaid dacoity and just after the alleged dacoity he was examined by PW 6 who found injuries on the person of PW 5 and therefore the aforesaid circumstance also supports the factum of dacoity. He further submitted that in course of trial witnesses stated that appellant had covered his face by gamcha but luckily the aforesaid gamcha got off during commission of the dacoity and in that course the witnesses identified the appellant. He further submitted that in course of trial witnesses stated that appellant had covered his face by gamcha but luckily the aforesaid gamcha got off during commission of the dacoity and in that course the witnesses identified the appellant. He further submitted that non-seizure of dhibri is not fatal to the prosecution case because being illiterate persons the prosecution witnesses did not produce the aforesaid dhibri before the Investigating Officer nor Investigating Officer did take any pain to seize the aforesaid dhibri and therefore there is nothing on the entire record on the basis of which this Court could interfere with the impugned judgment of conviction and sentence order. 10. PW 1 Rambrit Malli is father of PW 4 informant. This witness supported the factum of dacoity. This witness stated that while he was sleeping at the door of his house 9 to 10 dacoits came there and started assaulting him and also snatched his money. This witness further stated at para 2 of his examination-in-chief that one dacoit remain stayed at his door whereas rest dacoits entered into his house and assaulted his daughter as well as his wife and also committed loot. He further stated that at the time of commission of the aforesaid dacoity one dhibri was burning at the door. He claimed to have identified the appellant and one other dacoit but from perusal of para 6 of PW 8 it would appear that PW 1 had not claimed before the Investigating Officer (PW 8) to have identified the appellant at the time of commission of the dacoity. Therefore in my view the testimony of PW 1 is not free from doubt in respect of identification of the appellant. 11. PW 2. Jagpati Devi is wife of PW 1 and, she stated that she was sleeping inside the house and 8 to 10 persons came in her house. The aforesaid persons assaulted and committed loot. She stated that a dhibri was burning in the house and she identified the appellant and one Karodi. She stated at para 8 of her cross-examination that there were only two dacoits. She stated that dacoits had broken her wooden box and committed loot. 12. On perusal of deposition of this witness. I find that this witness claimed to have identified the appellant arid one other dacoit in the light of dhibri. 13. She stated at para 8 of her cross-examination that there were only two dacoits. She stated that dacoits had broken her wooden box and committed loot. 12. On perusal of deposition of this witness. I find that this witness claimed to have identified the appellant arid one other dacoit in the light of dhibri. 13. PW 3 Manju who happens to be cousin sister of PW 4 also supported the factum of dacoity and claimed that she had identified the appellant and one Karodia in course of dacoity. She claimed to have identified the appellant and aforesaid Karodia in the light of dhibri and torch. She further stated that at the time of dacoity she was caught by the appellant and Karodia and again she stated that she had seen only two dacoits. She further stated that appellant Baid Nath Mehtar and other dacoits had covered their faces with clothes. She further stated that dhibri was not only burning in courtyard but also at the door of the house. This witness proved the factum of dacoity as well as participation of the appellant in the alleged dacoity. 14. PW 4 also supported the factum of dacoity and stated that 8 to 10 dacoits came and assaulted him as well as other inmates of his house and committed loot. He further stated that police came at his house on the same day and recorded his statement. This witness stated that at the time of commission of the dacoity appellant had covered his face by gamcha but luckily the aforesaid gamcha got off and he identified the appellant. He stated that he had named the appellant before PW 8 when his statement was recorded and specifically denied this fact that he had not named any dacoit when his statement was recorded by the police. Although the aforesaid suggestion was given by the defence to this witness but defence did not draw the attention of PW 8 towards the statement of PW 4 recorded by the police and therefore even if it assumed that this witness had not claimed to have identified the appellant when his statement under Section 161 of the Cr PC was recorded then also the defence could not take any benefit of the aforesaid contradiction because admittedly the aforesaid contradiction was not taken by the defence from PW 8. 15. 15. PW 5 has supported the factum of dacoity but he has stated nothing against the appellant because he fairly stated that he could not identify any dacoit but this witness stated that he sustained injury in the aforesaid dacoity and got his treatment at Sahebganj hospital. 16. PW 6 Dr. Amarnath Jha proved the injury report of PW 5. 17. PW 7 is formal witness whereas PW 8 is Investigating Officer of this case. PW 8 stated that having got rumour he reached at the house of PW 4 recorded his statement inspected the place of occurrence and after completion of investigation submitted charge-sheet. This witness stated that in course of inspection he found a broken steel box in the house of PW 4 and he also found that clothes utensils and other articles were scattered in the house of PW 4. This witness further stated that in course of investigation he found some clothes lying near a pulia. He further stated that on the same day he arrested the appellant from his house but nothing was recovered from the house of the appellant. 18. On careful examination of depositions of prosecution witnesses I find that dacoity was committed in the house of PW 4 on the alleged date of occurrence and in course of aforesaid dacoity dacoits looted clothes ornaments and cash and also injured PW 5 who was got examined by PW 6 after the occurrence. Furthermore I find that PW 8 reached on the place of occurrence just after the alleged dacoity and on the same day he arrested the appellant from his house and the house of the appellant was searched but no incriminating article was found from the house of the appel1ant. Furthermore I find that appellant is co-villager of PW 4 and other prosecution witnesses and house of the appellant is situated in another tola of the village of PW 4. It is also apparent from the materials available on the record that being co-villager appellant was well known to material prosecution witnesses including PW 4 prior to the alleged occurrence. 19. It is also apparent from the materials available on the record that being co-villager appellant was well known to material prosecution witnesses including PW 4 prior to the alleged occurrence. 19. It has been argued on behalf of the appellant that it is hard to believe that being co-villager appellant would commit dacoity in his own village without covering his face but the statements of above stated prosecution witnesses clearly reveal that mask of the appellant was got off during course of the dacoity and as a matter of fact he had gone to commit dacoity after covering his face. So in my view the aforesaid submission of learned counsel for the appellant is not tenable in view of the materials available on the record. 20. Learned counsel for the appellant further submitted that it is also hard to believe that appellant would go to his house after committing the dacoity in his own village but I am unable to accept the aforesaid contention of learned counsel for the appellant because admittedly just after the alleged occurrence police reached there and raided the house of the appellant. So even if the appellant was arrested from his house after the alleged dacoity the aforesaid circumstance does not make the entire prosecution case doubtful. 21. From perusal of the impugned judgment I find that learned trial Judge based his findings on the basis of materials available on the case diary and in my view the learned trial Court committed error basing his findings on the basis of materials available on the case diary but even if the aforesaid findings of the learned trial Court are excluded then also there are sufficient materials on record to prove this fact that appellant participated in the alleged dacoity and in my view the prosecution has successfully proved the charges levelled against the appellant. 22. Learned counsel for the appellant submitted that appellant has already remained in jail custody for near about 600 days and he has sufficiently been punished. 22. Learned counsel for the appellant submitted that appellant has already remained in jail custody for near about 600 days and he has sufficiently been punished. He further submitted that prosecution could not succeed to bring any criminal history of the appellant on record in course of trial whereas the specific stand of the appellant is that he was falsely implicated by the prosecution on account of previous enmity and therefore a lenient view should be taken and end of justice would be met if appellant is sentenced to period already undergone by him in course of trial as well as during pendency of this appeal. 23. It appears that in course of trial appellant was arrested on 03.08.1995 and later on he was released on bail on 26.10.1995. Furthermore the appellant was convicted on 02.02.2001 and he was taken into custody on the same day and after that he was released on bail vide order dated 03.07.2002. Therefore I find that learned counsel for the 'appellant rightly submitted that appellant has already remained in jail custody for near about 600 days and he has sufficiently been punished. Admittedly appellant does not have any criminal antecedent and therefore in my view also the end of justice would met if the appellant is sentenced to period already undergone by him in course of trial as well as during pendency of this appeal. 24. On the basis of aforesaid discussions this criminal appeal stands dismissed with modification in order of sentence as stated above. Appeal dismissed.